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Windstead v. District of Columbia

March 12, 2008

JAMES WINDSTEAD, ET AL., PLAINTIFFS,
v.
THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for all purposes including trial. Currently pending before me is the District of Columbia Defendant's Motion to Dismiss or in the Alternative, for Summary Judgment ("Defs. Mot."). For the reasons stated below, the motion will be granted in part and denied in part.

INTRODUCTION

Plaintiffs are eleven current or former District of Columbia employees and the estates of two former District of Columbia employees who have made claims for disability compensation pursuant to the District of Columbia Comprehensive Merit Personnel System Act ("CMPA").*fn1 Defendants are 1) the District of Columbia, 2) Mayor Adrian Fenty,*fn2 and 3) James Jacobs, Director of the Office of Risk Management.*fn3 Both Fenty and Jacobs are sued in their official capacities.

DISCUSSION

I. Defendants' Motion to Dismiss

Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Under Rule 12(b)(6), complaints are liberally construed and all factual allegations in the complaint as well as any inferences that may be drawn from them are accepted as true. Lightfoot v. District of Columbia, No. 01-CV-1484, 2007 WL 148777, at *5 (D.D.C. Jan. 16, 2007).

A. Plaintiffs' § 1983 Claim

In order to ascertain whether plaintiffs have stated a claim for municipal liability pursuant to § 1983, the Court must first determine "whether the complaint states a claim for a predicate constitutional violation." Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted). The Court must next determine "whether the complaint states a claim that a custom or policy of the municipality caused the violation." Id. Accord Brown v. District of Columbia, No. 05-CV-5320, --- F.3d ----, 2008 WL 268899, at *3 (D.C. Cir. 2008); Bowman v. District of Columbia, 477 F. Supp. 2d 217, 220 (D.D.C. 2007). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Liability pursuant to § 1983, therefore, is not based on a theory of respondeat superior. Id. at 691.

In Count 1 of the Amended Complaint, plaintiffs state the following:

"Defendants did intentionally, knowingly, willfully and with complete disregard of Plaintiffs' rights deny Plaintiffs due process of the law by arbitrarily and capriciously administering the [CMPA*fn4 ]." Amended Complaint ¶ 86. Thus, plaintiffs claim that defendants violated their Fifth Amendment*fn5 due process rights in the administration of the CMPA.

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Matthews v. Eldridge, 424 U.S. 319, 323 (1976). In order to have a property interest in a benefit such as disability compensation, plaintiffs must have a "legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). It is undisputed in this Circuit that the CMPA creates such an interest; plaintiffs' Amended Complaint therefore sufficiently states a claim for a predicate constitutional violation under the Fifth Amendment. See Fonville v. District of Columbia, 448 F. Supp. 2d 21, 26 (D.D.C. 2006). Accord McManus v. District of Columbia, No. 07-CV-252, --- F. Supp. 2d. ----, 2007 WL 4573442, at *16 (D.D.C. 2007).

Plaintiffs also state the following in their Amended Complaint: "At all times relevant hereto, Defendants have acted under the color of state law and have maintained through habit, custom, prior practices, rules, and/or regulations, a policy or practice of denying Plaintiffs due process of the law by the arbitrary and capricious administration of the [CMPA]." Amended Complaint ¶ 85. Plaintiffs later describe the policy at issue as "Defendants' unconstitutional practice of arbitrary and capricious and unreasonable and unlawful delays in [CMPA] administration." Amended Complaint ¶ 11. Plaintiffs' Amended Complaint therefore also sufficiently states a claim that a custom or policy of the municipality caused the violation. As a result, plaintiffs' § 1983 claim survives defendants' motion to dismiss. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007).

The Court notes, however, that although plaintiffs originally claimed that either the CMPA was facially unconstitutional or that it was unconstitutional as applied, only plaintiffs' "as applied" claim survives the court of appeals' holding in Lightfoot v. District of Columbia, 448 F.3d 392 (D.C. Cir. 2006). In Lightfoot, the court held that no due process claim could be brought upon the theory that an agency must proceed through rulemaking when purporting to establish standards "that may be may be used to restrict an administrative agency's decision to terminate or modify a protected liberty or property interest" as opposed to resolving the issues on a case-by-case basis. Id. at 398. Because the court of appeals held that the CMPA was not unconstitutional on its face simply because it did not contain express written time limits for each step in the process of administering disability benefits, plaintiffs can now only argue that the delays they experienced in having their claims processed by defendants were in themselves so extreme as to constitute a violation of their due process rights. In other words, plaintiffs' claim is limited to an argument that the District has an unwritten policy or custom that violates their rights under the Fifth Amendment.

B. Plaintiffs' § 1985 Claim

Section 1985 creates a civil cause of action for conspiracy to interfere with an individual's civil rights. See 42 U.S.C. § 1985. The extent of plaintiffs' conspiracy claim under § 1985 is that "[d]efendants have acted under color of state law and have maintained through habit, custom, prior practices, rules, and/or regulations, a policy and practice of denying Plaintiffs due process of the law by the arbitrary and capricious administration of the Act" and that "[d]efendant, Jacobs, did conspire with unknown members of the TPA to deprive Plaintiffs of due process of the law." Amended Complaint ¶¶ 90, 91. A conspiracy is a "combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict wrong against or injury upon another, and an overt act that results in damage." Brady v. Livingood, 360 F. Supp. 2d 94, 104 (D.D.C. 2004) (citations omitted). In order to survive a motion to dismiss, plaintiffs must "set forth more than just conclusory allegations of an agreement." Graves v. United States, 961 F. Supp. 314, 321 (D.D.C. 1997). Plaintiffs must allege "facts showing the existence or establishment of an agreement." Id. Because plaintiffs fail to allege any such facts, they therefore fail to state a claim for conspiracy. See also McManus, 2007 WL 4573442, at *18 (holding inter alia that plaintiffs' general allegation that defendants engaged in a conspiracy to deprive plaintiffs of access to administrative remedies relating to their claims for disability compensation was insufficient to state a claim under § 1985).

II. Defendants' Motion for Summary Judgment

Defendants also move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 447 US 317, 322-23 (1986).

A. Statement of Undisputed Material Facts Tara Rogers

1. Rogers was injured on January 1, 1998. Defs. Mot., Exhibit ("DEX") 2 at 1; Plaintiff's Opposition to District of Columbia Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, Exhibit ("PEX") 201 at 1.

2. Rogers was injured on April 27, 1998. PEX 198 at 4.

3. Rogers was injured on February 4, 2002. PEX 203.

4. On April 28, 1998, Rogers filed a Form 1 Claimants Form with the D.C. Disability Compensation Program ("DCP") regarding her January 1, 1998 injury. PEX 198 at 1.

5. On May 5, 1998, Rogers' supervisor signed a Form 2 Supervisor's Form indicating that she did not certify that Rogers was in the performance of her duty at the time of her April 27, 1998, injury. PEX 198 at 4.

6. On December 31, 1998, Rogers received a Notice of Determination by Examiner from DCP indicating that her disability compensation claim for benefits relating to her January 1, 1998, injury had been denied/terminated on the basis that she had a non-occupational disease. PEX 199. Rogers was also told that she could submit a written request for review within thirty days of the date of the decision. PEX 199.

7. On August 27, 1999, Rogers received a Final Order of Denial from DCP regarding her January 1, 1998, injury. PEX 200 at 1. Her claim was denied on the basis that she had a non-occupational disease. PEX 200 at 1. Rogers was also told that she could submit a written request for a hearing within thirty days of the date of the decision. PEX 200 at 2.

8. On October 6, 1999, Rogers requested a formal hearing from DCP regarding her January 1, 1998, injury. PEX 201 at 1.

9. On September 18, 2000, Rogers received a Final Compensation Order from DCP adopting the Hearing Officer's Recommended Compensation Decision, which recommended that Rogers' claim for disability compensation and medical benefits relating to her January 1, 1998,*fn6 injury be granted. PEX 202 at 1, 6. The parties were informed that any appeals had to be filed in writing within thirty days of the date of the decision. PEX 202 at 1.

10. On January 27, 2002, Rogers wrote a letter to Mayor Williams regarding her inability to obtain health insurance through DCP. PEX 209 at 1.

11. On May 22, 2002, Rogers received a Form 5 Notice of Controversies stating that her claim for disability benefits as to her February 4, 2002, injury had been denied. PEX 203. Rogers was also informed that she could apply in writing for reconsideration within thirty days of the date of the decision. PEX 203.

12. On June 24, 2002, Rogers formally requested reconsideration of the Notice of Controversion dated May 22, 2002 relating to her February 4, 2002, injury. PEX 204 at 1.

13. On July 5, 2002, the D.C. Office of Risk Management ("ORM") acknowledged receipt of Rogers' request for reconsideration of her disability compensation benefits relating to her February 4, 2002, injury. PEX 205.

14. On August 6, 2002, Rogers received notice from DCP that an appointment for an IME relating to her February 4, 2002, injury had been scheduled for August 28, 2003.*fn7 PEX 206.

15. On September 6, 2002, Rogers received a letter from CLW/CKM, Inc. indicating that she had been selected to participate in the Skills Equal Employment Knowledge program. PEX 207 at 1.

16. On November 7, 2002, Rogers received a letter from Concentra Medical Examinations indicating that an appointment for an IME relating to her January 1, 1998 injury had been scheduled for December 23, 2002. PEX 208.

17. On April 17, 2003, Rogers received a DCP-5 Notice of Intent to Terminate Disability Compensation Payments from DCP stating that her payments relating to her January 1, 1998,*fn8 injury would be terminated on May 18, 2003. PEX 210 at 1. Rogers was also told that she could either request reconsideration by submitting a written request within 10 days of the date of the notice or appeal to the D.C. Department of Employment Services' Office of Hearings and Adjudication ("OHA"). PEX 210 at 1-2.

18. On June 13, 2003, Rogers sent DCP a letter indicating her willingness to undergo vocational rehabilitation services with regard to her February 4, 2002,*fn9 injury. PEX 211.

19. On June 13, 2003, Rogers formally requested reconsideration of the Notice of Controversion dated April 17, 2003, relating to her February 4, 2002, injury. PEX 212 at 1.

20. On June 18, 2003, ORM acknowledged receipt of Rogers' request for reconsideration of her disability compensation benefits relating to her February 4, 2002, injury. PEX 213.

21. On July 31, 2003, Rogers submitted an Application for Formal Hearing to OHA relating to her February 4, 2002,*fn10 injury. PEX 214 at 1-2.

22. On August 20, 2003, Rogers requested a Pre-Hearing Conference from OHA relating to both her January 1, 1998, injury and her February 4, 2002, injury.*fn11

PEX 215.

23. On September 7, 2003, OHA issued an Order Granting Motion for Pre-Hearing Conference relating to claims number 552.*fn12 PEX 216.

24. On September 15, 2003, Rogers sent DCP a copy of her report of disability rating, seeking an award for permanent partial disability.*fn13

25. On September 29, 2003, Rogers sent the Office of Corporation Counsel a letter outlining her analysis of the issues presented in relation to her efforts to obtain disability compensation for her injury of January 1, 1998.*fn14 PEX 218.

26. On October 1, 2003, Rogers withdrew her application to OHA for a formal hearing relating to her January 1, 1998, injury on the basis that all contested issues had been resolved in that DCP had agreed to reinstate Rogers' benefits including all past due and accrued benefits from May 18, 2003, to the present and continuing. PEX 219.

27. On October 2, 2003, Rogers received a letter from Elite Medical Legal Services confirming that an IME had be scheduled for her on October 16, 2003, regarding her January 1, 1998, injury. PEX 220 at 1.

28. On October 23, 2003, OHA issued an Order Dismissing Application for Formal Hearing based on the representations in Rogers' October 1, 2003, letter.*fn15 PEX 221.

29. On October 29, 2003, Rogers sent DCP a copy of the October 2, 2003, written agreement between the parties relating to her February 4, 2002,*fn16 injury. PEX 222 at 1.

30. On January 5, 2004, DCP issued a Form 5 Compensation Determination by Examiner reducing Rogers' benefits as to her January 1, 1998,*fn17 injury. PEX 223.

31. On April 2, 2004, Rogers received a Form 5 Compensation Determination by Examiner from DCP stating that her disability compensation claim for her January 1, 1998,*fn18 injury had been approved. DEX 2 at 1-2; PEX 224 at 1-2. Rogers was also told that she could apply in writing for reconsideration of the decision within 30 dates from the date of the decision. DEX 2 at 1; PEX 224 at 1-2.

32. On April 9, 2004, Rogers formally requested reconsideration by DCP of the April 2, 2004, compensation determination.*fn19 PEX 225 at 1.

33. On April 12, 2004, Rogers formally requested reconsideration of DCP's April 2, 2004, determination.*fn20 PEX 226.

34. On July 23, 2004, Rogers received a letter from the D.C. Office of Personnel ("OP") regarding her January 1, 1998, injury, in which she was asked whether she planned and was able to return to her position. PEX 228.

35. On June 9, 2006, Rogers received a Form NOC Notice of Determination Regarding Permanent Partial Disability Benefits relating to her January 1, 1998, injury that indicated that an overpayment of benefits had occurred. PEX 229 at 1-2. Rogers was also told that she could either 1) request reconsideration by submitting the Request for Reconsideration Form and supporting documentation within thirty days of the date of the notice, or 2) appeal the notice to OHA. PEX 229 at 1.

36. On June 16, 2006, Rogers received a Form DCORM-1 Final Decision on Reconsideration from DCP as to her injury of January 1, 1998, indicating that that April 2, 2004, determination as to Rogers' disability was being upheld but that clarification regarding her desire to receive permanent partial disability benefits was required. PEX 230 at 1-2. Rogers was also told that she could file for a hearing with OHA by July 15, 2006, thirty days from the date of the decision. PEX 230 at 1-2.

Patricia Hayden

1. Hayden was injured on February 2, 1996. PEX 78 at 1 n.1.

2. Hayden was injured on February 9, 1996. PEX 54 at 1.

3. Hayden was injured on February 14, 1996. PEX 53.

4. Hayden was injured on November 30, 1998. PEX 70.

5. Hayden was injured on December 15, 1999. PEX 78 at 1.

6. On December 10, 2000, Hayden filed a claim for recurrence of her disability relating to her February 9, 1996, injury. PEX 56.

7. On March 28, 2001, Hayden sent a letter to DCP requesting information about the status of her October 2000 claim for recurrence of her disability relating to her February 14, 1996, injury. PEX 53.

8. On May 9, 2001, Hayden received a Notice of Determination by Examiner from DCP stating that her disability compensation claim for her February 9, 1996, injury was being terminated. PEX 54 at 1. Hayden was informed that she could submit a written request for review of the decision with thirty days from the date of the decision. PEX 54 at 1.

9. On October 17, 2001, Hayden sent a letter to DCP requesting information about the status of her claim for recurrence of her disability relating to her February 9, 1996, injury, which was filed on December 10, 2000. PEX 56 at 1.

10. On July 18, 2001, Hayden formally requested reconsideration of the Notice of Determination relating to her February 14, 1996, injury. PEX 55.

11. On January 23, 2002, Hayden sent a letter to DCP forwarding a copy of her July 18, 2001, request for reconsideration relating to her February 9, 1996, injury. PEX 57 at 1.

12. On January 25, 2002, Hayden received a Final Order from DCP stating that her request for reconsideration relating to her February 9, 1996, injury had been denied as untimely because it was not filed within thirty days of the decision. PEX 58.

13. On January 30, 2002, Hayden filed an application for a formal hearing and final order of denial relating to her February 9, 1996, injury. PEX 59.

14. On May 31, 2002, DCP issued a Final Compensation Order denying Hayden's claim for benefits relating to her February 9, 1996, injury. PEX 60 at 4.

15. On December 10, 2002, the D.C. Department of Employment Services' ("DOES") Office of the Director issued a Decision and Remand Order of the Director reversing the May 31, 2002, Final Compensation Order denying Hayden's claim for benefits relating to her February 9, 1996, injury. PEX 60 at 4. Both parties were informed that they could file an application for review with the D.C. Court of Appeals within 30 days of the date of the decision. PEX 60 at 5.

16. On January 23, 2003, Hayden sent a letter to DCP requesting a breakdown of their calculations regarding her disability award relating to her November 30, 1998, injury. PEX 70.

17. On August 6, 2003, the D.C. Court of Appeals issued an Order granting the District's consent motion to dismiss its petition for review of the December 10, 2002, decision relating to her February 9, 1996,*fn21 injury. PEX 61.

18. On August 11, 2003, Hayden forwarded DCP a copy of the D.C. Court of Appeal's August 6, 2003, decision and requested payment of temporary total disability compensation wage replacement benefits relating to her February 9, 1996, injury. PEX 62 at 1.

19. On September 15, 2003, Hayden sent DCP various completed forms in support of her request for wage replacement benefits relating to her February 9, 1996, injury. PEX 63.

20. On October 23, 2003, Hayden sent DCP copies of her 2000 and 2002 income tax forms in support of her request for temporary total disability compensation relating to her February 9, 1996, injury. PEX 64.

21. On November 7, 2003, Hayden sent DCP copies of social security documents in support of her claim for disability benefits relating to her February 9, 1996, injury. PEX 65.

22. On January 7, 2004, Hayden sent DCP a copy of her IRS statements of income for 2000, 2001, and 2002, in support of her claim for benefits relating to her ...


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